Kaur v MIBP
[2018] FCCA 141
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 141 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal – Temporary Business Entry (Class UC) (Subclass 457) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl.457.223, Schedule 3, cl.3004 |
| Cases cited: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 Quan v Minister for Immigration and Border Protection [2013] FCA 1239 X v Director of Public Prosecutions [1995] 2 VR 622 |
| First Applicant: | RUPINDER KAUR |
| Second Applicant: | SANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 298 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Solomon-Bridge |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Hosking |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $8,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 298 of 2016
| RUPINDER KAUR |
First Applicant
| SANDEEP SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 14 January 2016, wherein the Tribunal affirmed the decision of a delegate of the Minister of Immigration and Border Protection (‘the Minister’), made on 7 August 2015, not to grant the Applicants’ Temporary Business Entry (Class UC) (subclass 457) visas (‘the visas’).
The Tribunal found that the First Applicant did not satisfy the criterion specified in cl.3004(f)(i) of Schedule 3 of the Migration Regulations 1994 (Cth) (‘the Regulations’), because she would not have been entitled to be granted a subclass 457 visa on 15 March 2011, that being the day on which her last substantive visa expired, if she had applied for the visa on that date. It is not disputed between the parties that the First Applicant did not satisfy the criteria for the grant of a subclass 457 visa on 15 March 2011.
The Applicants contend that the Tribunal fell into error by misconstruing cl.3004(f)(i) of Schedule 3 of the Regulations. The Minister submits that this contention should be rejected and that the Applicants’ application should be dismissed with costs.
The First Respondent notes that the Tribunal applied, as the Court finds it did, cl.3004(f)(i) of Schedule 3 of the Regulations in accordance with the interpretation given to that provision by this Court in Quan v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1254 (‘Quan’) and by the Federal Court of Australia in Quan v Minister for Immigration and Border Protection [2013] FCA 1239. The First Respondent submits that the Court should not doubt the correctness of the interpretation of cl.3004(f)(i) of Schedule 3 of the Regulations adopted in the aforementioned decisions, and should not depart from that interpretation. In response, the Applicant submits that the decision of the Federal Court of Australia was an ex tempore decision which refused an application for an extension of time to appeal a decision of this Court. The Federal Court of Australia refused the extension of time because the explanation for the delay given by the Appellant in those proceedings was inadequate, and because the proposed grounds of appeal lacked merit, including because they sought to resurrect grounds explicitly abandoned. The Court notes however, and as referred to and conceded by the Applicant, in Quan v Minister for Immigration and Border Protection [2013] FCA 1239 in the Federal Court of Australia, the court therein considered that the Applicant was not entitled to the grant of a subclass 457 visa because cl.3004(f) could not be satisfied on the basis that the Applicant did not have an approved sponsor on 4 October 2008, being the date on which the Applicant last held a substantive visa. This was the same finding as Judge Emmett of this Court in the decision of Quan wherein Her Honour found the reason the Applicant would not have been entitled to the grant of a subclass 457 visa on 4 October 2008, was because on that date, the Applicant did not have the sponsorship required for the grant of a subclass 457 visa.
Background
The Applicants are citizens of India. On 15 March 2011, the First Applicant’s subclass 572 student visa expired. She was thereafter granted bridging visas.
By application received 20 June 2013, the First Applicant applied for a subclass 457 skilled work visa. The First Applicant applied on the basis that she satisfied the primary criteria for the grant of the visa. The Second Applicant applied on the basis that he was a member of the family unit of the First Applicant and, therefore, satisfied the secondary criteria for the grant of the visa.
At the relevant time, cl.457.211 of Schedule 2 of the Regulations provided relevantly, that it was a primary criterion for the grant of a subclass 457 visa to be satisfied at the time of application that:-
“If the applicant is in Australia at the time of application:
(a) the applicant holds a substantive visa, other than subclass 771 (Transit) visa or a special purpose visa; or
(b) if the applicant does not hold a substantive visa at the time of application:
(i) the last substantive visa held by the applicant was not a subclass 771 (Transit) visa or a special purpose visa; and
(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.”
The First Applicant was in Australia at the time she applied for a subclass 457 visa, but did not hold a substantive visa at that time. She was, thus, required to satisfy the criteria specified in criteria 3003, 3004 and 3005 of Schedule 3 of the Regulations.
At the relevant time, cl.457.223 of Schedule 2 to the Regulations provided that it was a primary criterion for the grant of a subclass 457 visa to be satisfied at the time of decision that the Applicant met the requirements of sub-cl.(2) or (4) of cl.457.223. Relevantly, cl.457.223(4) provided that:-
“457.223
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) either:
…
(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased as provided for in regulation 2.75; and
Note: The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).
…
(d) the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
…”
On 28 January 2014, the Minister approved the nomination of an occupation in relation to the First Applicant.
On 3 April 2014, a delegate of the Minister refused to grant the Applicants the visas. The basis of that decision, as said by the Applicants was, essentially, that the delegate considered the sponsor was operating a takeaway food service as distinct from a café or restaurant. By legislative instrument, the occupation of “cook” was specifically excluded from being nominated in fast-food or takeaway food service businesses. Therefore, the delegate was not satisfied that the position associated with the business was “genuine”. The Applicant sought a review of that decision to the then Migration Review Tribunal.
On 7 May 2015, the Minister again approved a nomination of an occupation in relation to the First Applicant.
On 11 May 2015, the then Migration Review Tribunal determined to remit the Applicants’ applications for subclass 457 visas for reconsideration with a direction that the First Applicant met the criteria specified in cl.457.223(4)(a) and (d) Schedule 2 of the Regulations.
On 7 August 2015, a delegate of the Minister again refused to grant the Applicants’ the visas. The delegate found that the First Applicant did not satisfy the criterion specified in cl.3004(c) of Schedule 3 of the Regulations. The Applicants applied to the Tribunal for review of the delegate’s decision. On 14 January 2016, the Tribunal determined to affirm the decision not to grant the visa. Its sole basis for refusing to grant the visa was that it considered that the First Applicant did not meet Schedule 3 criteria specified in cl.3004(f)(i) of Schedule 3 of the Regulations.
The Tribunal Decision
The Tribunal Statement of Decision and Reasons (‘the Decision Record’) noted in paragraph 6 that the issue in the case before it “was whether the Applicant satisfied Schedule 3 criteria for the purposes of cl.457.221”. The Tribunal noted that the Applicant did not hold a substantive visa at the time of making the visa application and did not previously hold a Subclass 771 (Transit) or special purpose visa. The Tribunal set out its satisfaction with criterion 3003 of Schedule 3 of the Regulations in respect of the Applicants.
The Tribunal noted that criterion 3004 did apply to the Applicants, as the First Applicant was in Australia at the time of application for a subclass 457 visa, and did not hold a substantive visa at that time. The Tribunal noted that the First Applicant had ceased to hold a substantive visa on 15 March 2011 and that no nomination of an occupation in relation to the First Applicant had been approved at that time. The Tribunal noted the Applicant lodged the present application for the visas on 20 June 2013. The Tribunal said, relevantly, in its Decision Record:-
“14. As discussed with the applicants at the hearing, the Tribunal considers that the applicant does not meet other criteria contained within cl.3004(f). This criterion requires the applicant to demonstrate that she would have been entitled to the grant of a subclass 457 visa if she had applied for the visa on the day on which she last held a substantive visa on 15 March 2011.
15. The current application for a subclass 457 visa (sic) made on 20 June 2013, in connection with a related nomination made by Mohammed Khaled which had been approved by the Department on 7 May 2015...”
The Tribunal went on to say, critically, in paragraph 16 of the Decision Record that the question for it was:-
“…whether the applicant would have been entitled to the grant of a subclass 457 visa on 15 March 2011 when her last substantive visa expired.”
The Tribunal adopted the above interpretation of cl.3004(f) on the basis of the decision of this Court in Quan, which the Tribunal discussed in its Decision Record. The Tribunal said, relevantly:-
“19. In the present case, the evidence before the Tribunal is that at the time when the visa applicant’s last substantive visa expired, no nomination relating to the applicant (sic) been approved, allowing her to satisfy the mandatory nomination criteria in cl. 457.223(4)(a).
20. During the hearing the Tribunal provided the applicant with its preliminary views concerning the requirements of cl.3004(f) and the effect of the judgement in Quan. The applicant stated that she had sought advice in relation to the lodgement of the subclass 457 visa as the holder of a bridging visa, and had been advised by a registered migration agent that the application could be made onshore. Following this advice the applicant stated that she lodged the application in June 2013. The Tribunal noted that the judgement of the Federal Circuit Court in Quan was delivered on 2 September 2013, after she lodged her visa application. The Tribunal indicated that whilst the applicant was perfectly entitled to lodge the application on 20 June 2013, the clear effect of the judgment in Quan was that she would be unable to meet substantive time of application criteria requiring her to satisfy schedule 3, cl.3004(f).”
As the Tribunal found the First Applicant did not satisfy cl.3004(f)(i) of Schedule 3 of the Regulations, it found she did not satisfy cl.3004 of Schedule 3 of the Regulations in its entirety, and thus did not satisfy the primary criterion for the grant of subclass 457 visas specified in cl.457.211 of Schedule 2 of the Regulations.
Ground 1
The Applicant contends the Tribunal fundamentally misunderstood the requirements of cl.3004(f) and thereby fell into jurisdictional error.
Schedule 3 cl.3004 provides as follows:-
“ If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.”
The Applicants submit that cl.3004(f) was an additional cumulative requirement of cl.3004 and required that, in the First Applicant’s case “the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant had last held a substantive … visa.”[1]
[1] Applicant’s submissions filed 3 May 2017, 17.
The Applicants submit that cl.3004(f) required the Tribunal either:
a)to assess whether the First Applicant would be, at the time of the Tribunal’s decision, entitled to be granted a subclass 457 visa if she had applied for the visa on 15 March 2011 rather than 20 June 2013; or
b)alternatively, to assess whether the First Applicant would have been, at some indeterminate point between 15 March 2011 and the time of the Tribunal’s decision, entitled to the grant of a subclass 457 visa if she had applied for the visa on 15 March 2011 rather than 20 June 2013.
The Applicants argue that the approach of the Tribunal meant that the Applicants were required to satisfy, not only the time of application criteria for the relevant visa, but all of the time of decision criteria as at the date his or her last substantive visa expired. The Applicants submitted that approach was contrary to:-
a)the plain and ordinary meaning of the words used in cl.3004(f); and
b)the context in which cl.3004(f) appears.
The Applicants argue that the Tribunal departed from the plain and ordinary language by construing cl.3004(f) to mean that the First Applicant was required to be entitled to be granted the visa on 15 March 2011. The Applicants argued there was no such requirement imposed by the terms of cl.3004(f).
The Applicants further argue that the statutory context also supported giving effect to the plain and ordinary meaning of the words in cl.3004(f) and militated against the approach adopted by the Tribunal.
The Applicants submit as to the statutory context (as set out in their submissions filed 3 May 2017) the following:-
“21.1 First, cl 3004 is necessarily concerned with a class of visa applicants who have failed to lodge their applications on time, including those who may have lodged months or years after the expiry of their substantive visas. It defies common sense that a visa applicant of that class, who has delayed in lodging, for example, a 457 visa application beyond the expiry of his or her substantive visa, would nevertheless have thought to organise, and then secured, his or her employer nomination approval before the expiry of the substantive visa.
21.2 Secondly, the timing of any approval of the employer nomination is (subject to a mandamus writ) entirely in the hands of the Minister. In this case, there was evidence that the process of nomination approval took more than 10 weeks once the application had been received by the Department. It would produce anomalous results if cl 3004(f) were interpreted to require that an applicant secure employer nomination by an artificial deadline, in circumstances where the timing of those approvals lay solely within the Minister's control. In the instant case, the MRT sensibly adjourned the review to await the Minister's reapproval of the nomination. The Tribunal's interpretation of cl 3004(f) allowed for no such flexibility and fairness to the First Applicant. The Tribunal's approach would also expect that an applicant (who, as discussed above, is necessarily in a class of tardy applicants) would organise with his prospective employer an application for approved nomination potentially several months before the expiry of his or her last substantive visa.
21.3 Thirdly, cl 3004(f) is one of a number of cumulative requirements imposed by cl 3004. If an applicant can satisfy cl 3004(f), the Tribunal is still permitted (and indeed required) to assess the applicant against the more substantive matters in cl 3004, including whether the applicant was not the holder of a substantive visa because of factors beyond his or her control, whether there were compelling reasons to grant the visa, and whether the applicant had substantially complied with previous visa conditions. In that context, cl 3004(f) should not be construed in such a way that would make it practically impossible for an applicant to satisfy, thereby guillotining the Tribunal's consideration of the more substantive and merit-based criteria in cl 3004. Such an interpretation would go against the object of cl 3004, which is plainly designed to permit the Tribunal to consider whether an indulgence should be granted to an applicant on principled grounds, notwithstanding the late lodgement of the application.
21.4 Fourthly, the approach adopted by the Tribunal, which required all the time of decision criteria to have been satisfied at an arbitrary date some years before (when the last substantive visa expired), produces difficulties and anomalies in applying various other time of decision criteria for the 457 visa. For example:
(a) Clause 457.223(4)(d) requires as a time of decision criterion that the Minister be satisfied that the applicant's intention to perform the occupation is genuine. An applicant who has lodged the visa application many years after the expiry of his or her last substantive visa may have had no intention at that point of performing the occupation for which he or she now applies;
(b) Clause 457.223B requires as a time of decision criterion that the Minister be satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia. An applicant who has lodged the visa application many years after the expiry of his or her last substantive visa may have had no “intended stay” at that point.
21.5 Fifthly, on the First Applicant's construction of cl 3004, cl 3004(f) has work to do. In the case of 457 visas, when one hypothesises that the application had been made on the date that an applicant last held a substantive visa, then an applicant will notionally satisfy the sole time of application criterion in cl 457.211. However, the decision-maker then must still go on to consider the remaining cumulative criteria in cl 3004 and all of the additional time of decision criteria for the visa. Moreover, cl 3004 is relevant to many other visa subclasses, including subclass 403 (Temporary Work) (International Relations) visa, subclass 405 (Investor Retirement) visa, subclass 410 (Retirement) visa, subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa, subclass 600 (Visitor) visa, subclass 602 (Medical Treatment) visa, subclass 676 (Tourist) visa, subclass 820 (Partner) visa, and subclass 858 (Distinguished Talent) visa. For some of those visas, there are multiple time (sic) of application criteria that must be satisfied (see e.g. subclass 461 visa, subclass 676 visa, subclass 820, and subclass 858 visa). In those cases, hypothesising that an applicant had lodged his or her application on the date on which the last substantive visa was held does not mean that if the applicant can satisfy all the other cumulative criteria in cl 3004 he or she will have also necessarily satisfied all the time of application criteria for the visa.”
The Applicants’ submissions do contradict this Court’s earlier decision in Quan and are contrary to the reasoning of the Federal Court of Australia in Quan v Minister for Immigration and Border Protection [2013] FCA 1239. The Minister submits that the Applicants’ submissions are also contrary to the text of cl.3004(f) and the context in which that clause appears. The Minister submits that, properly construed, cl.3004(f) required the Tribunal to assess whether the First Applicant would have been, on 15 March 2011, entitled to be granted a subclass 457 visa if she had applied for the visa on 15 March 2011, rather than 20 June 2013. That was the assessment that the Tribunal, in fact, undertook. As at 15 March 2011, the First Applicant had no employer nomination. She did not have, as at 15 March 2011, the sponsorship required for the grant of a subclass 457 visa.
Whilst the decision of the Federal Court of Australia in Quan v Minister for Immigration and Border Protection [2013] FCA 1239 concerned an application for an extension of time, and thus does not bind this Court,[2] the Court, nevertheless, accepts that decision has persuasive value and provides guidance to this Court about the proper interpretation of cl.3004(f). In that decision, Farrell J said, at [32] to [33], relevantly the following:-
“32. Ground 6 of the Proposed Grounds reflects ground 5 of the Amended Application to the FCC, and it asserts that the applicant met the criteria for the grant of a 457 visa. This is a pivotal issue in considering the merits of the proposed appeal if an extension of time were to be granted. This ground could not be made out because: (1) it was abandoned in the court below; (2) the applicant did not identify to this Court how the Tribunal and the primary judge’s construction of cl 3004 was in error; and (3) I perceive no error on my reading of the reasons of the Tribunal or the primary judge.
33. The result is that no matter how compelling the reasons may be to grant the applicant a 457 visa based on the applicant’s claims to fear persecution, the applicant is not entitled to the grant of a 457 visa because cl 3004(f) cannot be satisfied. The applicant did not have an approved sponsor (as would have been required at that time) on 4 October 2008, the last day on which she held a substantive visa. Each of paragraph (c)-(h) of cl 3004 must be satisfied as they are conjunctive. For the same reason the only ground which was pressed in the court below (essentially Ground 4 of the Amended Application to the FCC) must also fail.”
[2] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, 133 [112] (Kiefel and Keane JJ); X v Director of Public Prosecutions [1995] 2 VR 622 [626] (Callaway JA).
The Court finds no reason to doubt the correctness of the interpretation of cl. 3004(f)(i) of Schedule 3 of the Regulations adopted in the earlier decision of this Court in Quan and in the decision of the Federal Court of Australia on the extension of time appeal application, and determines that it should not depart from that interpretation. Accordingly the application must fail on this basis alone.
Where the three interpretations of cl.3004(f)(i) put before the Court differ is in their identification of the point in time by reference to which the Tribunal’s assessment must take place, being the point in time at which the First Applicant must “have been entitled to be granted” a subclass 457 visa. The Court accepts that the relevant point in time, in these proceedings, was 15 March 2011.
The Court accepts the submission of the First Respondent as set out in paragraph 46 of the First Respondent’s further written submissions filed 16 May 2017, that the words “would have been entitled to be granted” in cl.3004(f)(i) express a conditional past tense. That is, they require an assessment of whether, if the First Applicant had applied for the visa on 15 March 2011, the First Applicant would have been “at a point in time in the past” entitled to be granted a subclass 457 visa. The words “would have been” cannot be read as requiring the Tribunal to assess whether the Applicant would be, at the time of decision, entitled to be granted the visa.
A visa applicant who is in Australia without a substantive visa at the time of application is required to satisfy additional requirements, in particular as set out in cl.3004 subparagraphs (c), (d), (e), (g) and (h) over and above those that a visa applicant who held a substantive visa at the time of application is required to satisfy. This ensures that an applicant for a subclass 457 visa who is in Australia at the time of application but does not hold a substantive visa at that time, does not have an advantage over an applicant for the visa who is in Australia at the time of application and does hold a substantive visa at that time.
The Court accepts the Minister’s submission that the interpretation for which the Applicants contend of cl.3004(f) would result in great uncertainty in its operation. It is unclear how a Tribunal would make an assessment of when a decision would have been made on a visa application in the ordinary course. What is the ordinary course? Does it include the average processing times for applications made for that class of visa on a similar date before the Tribunal? The interpretation of cl.3004(f)(i) for which the Minister contends has a certain operation; it operates by reference to a readily ascertainable date being that on which the Applicant last held a substantive visa. The approach contended for by the Applicants would result in, by comparison, great uncertainty in the operation of the clause, perhaps even leading to the clause’s invalidity.
The Court also accepts the First Respondent’s submission in paragraph 71 of the First Respondent’s submissions, that it is not relevant to the construction of cl.3004(f) that it may be difficult for an Applicant who has lodged an application for a subclass 457 visa years after the expiry of his or her substantive visa to satisfy cl.3004(f)(i). Given the lengthy delay, it is also likely to be difficult for such an Applicant to satisfy the other criteria in cl.3004, in particular the requirement to show that there was a compelling reason why the application was made so late. It is not inconsistent with the text, context or purpose of cl.3004(f)(i) for it to be difficult for a visa Applicant who has remained in Australia for several years without a substantive visa to be able to satisfy the criterion.
The application shall be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 24 January 2018
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